State v. Bannister

• Decision Date: 20 November 1984
• Docket Number: No. 64896,64896
• Citation: 680 S.W.2d 141
• Parties: STATE of Missouri, Respondent, v. Alan Jeffrey BANNISTER, Appellant.
• Court: Missouri Supreme Court

Page 141

680 S.W.2d 141

STATE of Missouri, Respondent, v. Alan Jeffrey BANNISTER, Appellant.

No. 64896.

Supreme Court of Missouri,

En Banc.

Nov. 20, 1984.

Rehearing Denied Dec. 18, 1984.

Ray Gordon, Public Defender, David Robards, Sp. Public Defender, Joplin, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

A jury convicted Alan Jeffrey Bannister of capital murder, section 565.001, RSMo 1978, and recommended he be punished by death, section 565.008, RSMo 1978 (repealed 1983). Judgment was rendered accordingly. Appellant charges: the trial court lacked jurisdiction because officers illegally arrested defendant; the statutes that authorize capital punishment permit one to avoid the death penalty by pleading guilty and so "chill" defendant's constitutional right to a trial by jury; the selection of the jury panel was improper; the court erred in certain rulings on voir dire; the court erred in admitting certain evidence and in omitting certain required instructions to the jury during the trial. In addition to review of these contentions, the Court will review the death sentence as mandated by law. See sections 565.014, RSMo 1978, and 565.035, Cum.Supp.1983. Affirmed.

The evidence is sufficient to support defendant's conviction for the hired killing of Darrell Ruestman.

In August 1982, defendant lived near Peoria, Illinois, with Ronald Rick Wooten, also known as "Indian." Indian asked defendant if he would like to make some money by killing a man. When defendant expressed interest, Indian explained that a man whose wife left him for another man wanted to have the latter killed. According to the plan, defendant would receive $4,000 to commit the murder, $1,500 in advance and the remainder upon proof of the death with a newspaper report. Indian would furnish a gun and transportation. Indian subsequently gave defendant a slip of paper, upon which was written "Darrell Ruestman, Shady Lane Mobile Home Park, Joplin, Missouri." The plan thus completed, defendant left by bus for Joplin.

On August 20, 1982, Darrell Ruestman was living in a Joplin trailer park with Linda McCormick, then married to Richard McCormick. That afternoon, defendant arrived in town, registered under a different name at a motel where he paid in advance for two days, and then visited the trailer park. He returned to the park on the following day, when he befriended a resident, Glenn Miller. When Ruestman and McCormick arrived at home that evening, McCormick observed defendant and Miller sitting in front of the Miller trailer, next to that occupied by Ruestman and McCormick. Later in the evening, McCormick again observed the two men in the vicinity of the trailer she shared with Ruestman. McCormick retired, and awoke at approximately 10:00 p.m. to the sound of knocking at the trailer door. When Ruestman answered the door, he was shot, and died before the police arrived.

At approximately 3:30 a.m. the next morning, defendant took a taxicab to the bus station, where he was arrested by Joplin and Newton County police officers for the murder of Darrell Ruestman. Defendant was placed in a lineup and was positively identified by McCormick and two other witnesses as the man seen near the Ruestman trailer shortly before the murder. In subsequent statements to the police, defendant revealed various details of the crime, and led officers to certain physical evidence, including the murder weapon and the torn-up note with the victim's name on it. Additional facts appear in the context of the issues to which they pertain.

I.

Appellant argues, pro se, that the lower court was without jurisdiction to try his case because his arrest was illegal. This assertion, if true, did not divest the trial court of jurisdiction to try the case. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); State v. Olinghouse, 605 S.W.2d 58 (Mo. banc 1980); State v. Moore, 580 S.W.2d 747 (Mo. banc 1979). Appellant's citations do not hold otherwise.

II.

Appellant questions the constitutionality of sections 565.006 and 565.008, RSMo 1978, which govern the imposition of capital punishment in this state. Based on references to the "trial" and "trials" in these provisions, appellant construes the statutes as precluding the penalty of death when an accused tenders a guilty plea. If this construction were correct, the constitutionality of the statutes would, as defendant argues, be in doubt. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). The statutory language, legislative history and case law, however, do not support such construction.

The legislation on its face does not expressly distinguish for purposes of punishment between defendants who plead guilty and those who seek jury trials. This Court has observed that "the Missouri capital murder statutes draw no such invidious distinction," State ex rel. Westfall v. Mason, 594 S.W.2d 908, 915 (Mo. banc 1980), rev'd on other grounds, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981); and this Court does not read a possibly impermissible classification into the statutes where none appears intended.

III.

Appellant argues the trial court erred in refusing to quash the jury panel because its selection did not comport with the applicable statutes. Appellant concedes that the creation of the jury pool and the selection of the panel was proper. He complains of a denial of his right to a fair and impartial jury based on the dismissal from service of prospective jurors by a single member of the Board of Jury Commissioners, acting alone, rather than by the entire Board.

The "single member of the Board" was the trial judge, who for reasons undisclosed excused eleven potential jurors prior to trial. Appellant does not claim that the judge excused these jurors for insufficient or improper reasons. The only attempt to show that the action of the trial court prejudiced defendant is his contention that the practice creates the possibility of error on the part of the trial judge which may lead to removal of a qualified juror. The trial court possesses the discretion to evaluate the qualifications of prospective jurors and to excuse ineligible individuals from the panel. State v. Gilmore, 661 S.W.2d 519, 523 (Mo. banc 1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). Appellant's general allegation, without more, does not establish that the court abused its discretion in this instance. Substantial compliance with the statute is sufficient, and a defendant cannot prevail where, as here, he is unable to point to any prejudice caused by a failure to accord strict compliance with the statutory procedure.

IV.

Appellant charges a number of errors to conduct of the voir dire examination. The applicable standard of review recognizes that the trial court is possessed also of the discretion to control voir dire examinations, and its rulings will be upheld on appeal absent abuse of that discretion. State v. Smith, 649 S.W.2d 417 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). In the first of these charges, appellant argues that the trial court unduly restricted questioning by defense counsel on the subject of capital punishment. The State responds that the questions posed were irrelevant in determining the qualifications of the jurors and, in any event, that defendant suffered no prejudice as a result of the court's rulings.

Only an abuse of discretion combined with likely injury to the complaining party warrants setting aside a challenged ruling. Smith, supra, at 422. Appellant objects to the limitation on defense counsel's use of open-ended questions. This limitation was reasonable, a proper exercise of the court's discretion in controlling the proceeding, and left the defense free to rephrase its questions. Appellant also argues that the court hampered efforts to rehabilitate jurors who expressed opposition to the death penalty by restricting the use of hypothetical examples. From the record it appears that the judge did not prohibit all references to situations other than the case on trial, and stated only the likely intention to disallow further questioning if it became repetitious. The panel members were questioned on their ability to consider the full range of punishment, including the death penalty. There is no evidence of either an abuse of discretion or of injury to the defendant resulting from the court's rulings.

Appellant argues that the trial court erred in refusing to strike for cause venireman Morris who stated, "It might sway my opinion on how I would vote if you were to find [defendant] guilty, and you didn't put him to death. What I'm saying is I don't want him put in a jail cell at my expense." The statement was volunteered following comments of the prosecutor to the panel on the availability of the death penalty in a capital murder case. It was not made in response to any question on voir dire; neither party probed Morris for meaning or exploitation of the unsolicited remark. The defense exercised a peremptory challenge to remove Morris from the panel.

The standard set forth above and the failure of the defendant to preserve this issue in his Motion for New Trial confine this Court's review of his claim. Rule 30.20. Mr. Morris was not among the jurors who responded in the negative when asked if they could follow all of the instructions of the court and accord defendant a fair and impartial trial. Generally, language such as "might sway" reveals a predilection on the part of a venireperson insufficient to justify removal. See State v. Olinghouse, 605 S.W.2d 58 (Mo. banc 1980). When the response of a potential juror suggests a question of his qualifications to serve, defendant shares responsibility for probing the juror's qualifications through further inquiry. State v. Ofield, 651 S.W.2d 190 (Mo.App.1983); State v. Cheesebrew, 575 S.W.2d 218 (Mo.App....