State v. Bainter, No. ED 86381 (Mo. App. 6/6/2006)
| Decision Date | 06 June 2006 |
| Docket Number | No. ED 86381,ED 86381 |
| Parties | STATE OF MISSOURI, Respondent, v. PAUL L. BAINTER, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Charles County, Hon. Lucy D. Rauch.
Kent Denzel, Columbia, MO, for appellant.
Jeremiah W. Nixon, Lisa M. Kennedy Jefferson City, MO, for respondent.
Before Hoff, P.J., Ahrens, J. and Cohen, J.
Paul Bainter ("Defendant") appeals from the judgment of the trial court following verdicts convicting him of first degree robbery, first degree burglary, resisting arrest, seven counts of felonious restraint, and eight counts of armed criminal action. The trial court sentenced Defendant as a persistent offender to consecutive terms of life imprisonment for the robbery, life imprisonment for the burglary, seven years' imprisonment for resisting arrest, fifteen years' imprisonment for each count of felonious restraint, and fifty years' imprisonment for each count of armed criminal action. Defendant raises a number of claims on appeal, including a claim that the jury was never sworn to try the case. We transfer this case to the Missouri Supreme Court.
On January 3, 2004, two suspects robbed an IGA grocery store ("IGA") in St. Charles, Missouri, with each suspect using a gun. During the course of the crime, the suspects directed one of the owners, the employees, and the two customers into the meat cooler in the back room, closed the front door to the meat cooler and told the people inside to stay there.
The day following the robbery at the IGA, Defendant and Robert Davis were arrested by members of the O'Fallon Police Department following a chase of a white pickup truck with stolen plates driven by Davis, and a subsequent chase on foot as Defendant and Davis fled after abandoning the truck in the median of I-70.
Defendant and Davis were tried jointly in March 2005. The venire panel was sworn, examined on voir dire, and a jury was selected. The trial court excused the selected jurors for lunch, and before they returned, had a brief discussion with the attorneys on the record. During the course of that discussion, the trial court stated that "we're ready to proceed to bring the jury up to place them under oath and read the preliminary instructions and opening statements." The jury was thereafter brought into the courtroom, and the trial court proceeded to outline the course of the trial and give preliminary instructions, but did not administer the oath to the jury. Counsel for the State and for Defendant made their opening statements, and the trial continued. Following the close of the evidence and the reading of instructions, the jury retired to deliberate.1 The jury returned eighteen guilty verdicts against Defendant. The trial court polled the jurors, who confirmed that these were their verdicts. The trial court found that the verdicts were in proper order, accepted them, and ordered them filed. It thereafter discharged the jury.
Defendant timely filed a motion for a new trial, or in the alternative, judgment of acquittal. Among the grounds raised in this motion was the failure of the trial court to swear the petit jury. The trial court denied the motion. Regarding the swearing of the jury, the trial court specifically found that:
With respect to the Court's apparent failure to administer the usu[]al oath to the jury after empanelling the jury, despite announcing its intention to do so on the record, as brought to the attention of counsel after the Court reviewed the Court's trial notes and the court reporter reviewed her official notes, the Court finds that the members of the jury were sworn as members of the venire panel and questioned under oath as to their ability to follow the instructions of the Court and their qualifications to serve as jurors in the above styled cause, they were found qualified as jurors in this cause, were empanelled and instructed by the Court without objection; were polled as to their verdicts and adopted their verdicts; the verdicts were accepted and ordered filed and the jury discharged, all without objection. The Court there[]fore finds that the jury was sworn and any irregularity in the oath has been waived by defendants for failure to timely make an objection; ...
Defendant now appeals.
We address Defendant's second point relied on as it is dispositive of the case. In his second point, Defendant contends that the trial court plainly erred in entering sentence and judgment against Defendant in that the petit jury was never sworn to try the case.
Defendant did not object to the failure to swear the jury, although he raised the matter in his motion for a new trial. Accordingly, he requests plain error review. In reviewing for plain error, this Court should examine first whether the claim is one that, on its face, establishes substantial grounds for believing that manifest injustice or a miscarriage of justice has occurred. State v. Norman, 178 S.W.3d 556, 560 (Mo. App. 2005). Once a determination has been made that plain error is established facially, this Court then reviews the claim to determine whether or not manifest injustice or a miscarriage of justice has actually occurred. Id. The plain error rule is to be used sparingly, and it does not justify a review of every alleged error that has not been preserved properly for appellate review. Id. Plain error is clear, obvious, and evident error, and not all prejudicial error is plain error. Id.
A jury is to be impaneled and sworn before the trial proceeds. Section 546.070 RSMo (2000). As Rule 27.02(d) provides, the order of trial in a felony case requires that "[a] qualified jury shall be selected as provided by law and shall be sworn well and truly to try the case." The jury does not actually exist until the venirepersons selected therefor are sworn to service in that capacity. State v. Bohlen, 690 S.W.2d 174, 177 (Mo. App. 1985). The oath for swearing a selected jury is substantively as follows:
Members of the jury, please rise and raise your right hand to be sworn. You and each of you do solemnly swear that you will well and truly try the issues in this cause, in which the State of Missouri is plaintiff and __________ is the defendant, and a true verdict render according to the law and the evidence so help you God. Be seated please.
Bench Book for Missouri Trial Judges, Vol. V, Ch. 3, Section 3.9(5) (1998).2
The issue of failing to swear a petit jury has been addressed by the Missouri Supreme Court. It is reversible error if the record does not show that the jury has been sworn to try the cause before the jury starts to deliberate. See State v. Frazier, 98 S.W.2d 707, 715 (Mo. 1936); State v. Berry, 195 S.W. 998 (Mo. 1917); State v. Mitchell, 97 S.W. 561, 561-62 (Mo. 1906). While the trial court may often be presumed to have done its duty, the record must show affirmatively that the jury was sworn. State v. Barr, 34 S.W.2d 477, 479 (Mo. 1930); State v. Taylor, 256 S.W. 1059, 1061 (Mo. 1923). Missouri statutes and the Rules contemplate that the jury shall be impaneled and sworn at the start of the trial. Section 546.070 RSMo (2000); Rule 27.02(d). See also Frazier, 98 S.W.2d at 715. "However, a party may waive irregularities in the swearing of the jury, where there has been substantial compliance with the statute." Id. In Frazier, the jury was not sworn until after five witnesses had testified, and the defendant failed to make a timely objection. Id. The Missouri Supreme Court held that there was substantial compliance with the statute where the jury had been sworn prior to deliberating, and that the irregularity in administering the oath was not a fatal error. Id. at 715-16.
The State contends that the absolute requirement of Mitchell that a petit jury must be sworn in a criminal case is a result of legal formalism, and the modern trend has been away from formalism and to adopt a more functional approach. The State argues that this is, at most, a defective oath situation similar to that in Frazier, and that Frazier itself indicates that Missouri has moved away from the alleged legal formalism of Mitchell and adopted a more functional approach. We disagree. The Missouri Supreme Court in Frazier held that "it is imperative that the jury be sworn to try the case and that the record show it[,]" and also held that administering the oath to the jury "during the progress of the trial and before they had begun to deliberate" constitutes substantial compliance with the statute, and that such a claim of error could be waived by failing to timely object. Frazier, 98 S.W.2d at 715-16. It did not hold, or even imply, that a complete failure to administer the oath prior to jury deliberations constitutes "substantial compliance" with the statute, or that the defendant could waive such a claim of error. In the case before this Court, the record does not show that the jury was ever sworn at any point during the trial. The trial court stated its intention to swear the petit jury prior to reading instructions one and two to the jury, but failed to do so. The trial court discovered this oversight after verdicts were returned and the jury discharged. Here there was no substantial compliance with either the statute or Rule 27.02(d).
The State cites an Alabama case, Ex parte Deramus, 721 So.2d 242 (Al. 1998) in support of the proposition that if the venire is sworn, the failure to swear the petit jury constitutes a defective oath situation and not a failure to give any oath at all and is reversible error only if an objection is timely raised. We disagree. The fact that the venire was sworn does not make the failure to swear the jury a defective oath situation. The two oaths are different. In Deramus, the oath given to the venire went beyond requiring that the members of the venire swear or affirm to well and truly answer questions relating...
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