State v. Barks
| Decision Date | 29 April 1986 |
| Docket Number | No. 50129,50129 |
| Citation | 711 S.W.2d 892 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Robert BARKS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Charles M. Shaw, Clayton, for defendant-appellant.
John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Appellant was convicted by a jury of attempted stealing of an automobile, RSMo Section 564.011 (1978). The Circuit Court of Jefferson County entered judgment on the jury's verdict and sentenced him as a persistent offender to a term of eight years in the Missouri Department of Corrections. On appeal, appellant charges that the trial court committed reversible error in (1) failing to strike for cause three veniremen, thereby denying appellant his right to a full panel of qualified jurors before the exercise of his peremptory challenges; (2) not granting appellant's motion for a judgment of acquittal based on the insufficiency of the evidence; (3) not granting appellant's motion to suppress evidence; and (4) submitting an incorrect jury instruction. We affirm.
During voir dire, the prosecutor questioned four veniremen about their acquaintance with Deputy Sheriff Chris Pigg and Lieutenant Ed Kemp of the Jefferson County Sheriff's Department.
MR. BOUCHARD: Deputy Chris Pigg will be testifying in the trial of this case. Anyone know Deputy Pigg?
Mr. Crump, how do you know Deputy Pigg?
Q. That was what, football?
A. Basketball.
Q. Chris was in basketball?
A. He was a little younger then.
Q. He's a little heavyset now. Due to the fact that you know Chris, coached him on the basketball team, could you put that aside and evaluate his testimony fairly and impartially, the same as you would any other witness in the case?
A. I think so.
Q. Any doubt about that at all?
A. No doubt.
Q. Anyone else? Mr. Forester, do you know Chris?
A. He went to school with my daughter.
Q. And about how long ago was that?
A. I don't know.
Q. Ten years ago?
A. Ten years ago.
Q. Is there anything about that situation that would cause you to have any problems in being fair and impartial?
A. No.
* * *
* * *
Anyone know Lieutenant Ed Kemp? He's with the Jefferson County Sheriff's Department, has been for a number of years; he's a big, big person. Anyone here know Ed Kemp?
Mrs. Blake, how do you know Ed Kemp?
A. Well, I've known him for about 28 years; since he was a child.
Q. Do you know him through his parents? Is that how you met him?
A. Yes.
Q. Are you still friends with his parents?
A. Yes.
Q. Do you still see Lieutenant Kemp on a regular basis?
A. No.
Q. Is there anything about the fact that you know Lieutenant Kemp through his parents and have for a long time that would cause you to have any problems in evaluating his testimony in the same manner as you would anyone else who would appear in the trial of this case?
A. No.
Q. You can put that aside?
A. Yes.
Q. No problem at all?
A. No problem.
* * *
* * *
Later, the defense counsel questioned the four veniremen.
MR. SHAW.
Q. Mr. Stotler, where are you from originally?
A. Bonne Terre, Missouri.
Q. Did you get your early schooling in St. Francois County?
A. Yes, I did.
Q. You have been in Jefferson County for some time?
A. Yes, sir.
Q. And where is it that you teach?
A. Herculaneum, Missouri.
Q. I don't believe that Officer Pigg said at any time that this man did anything. He's an officer in the case and in the investigation. I believe he made the arrest, and he's a student or was a student of yours and apparently you were a coach.
Now, do you feel that you would want him to convict somebody just because he's testifying in behalf of the State in this case?
A. No, I don't.
Q. It's got to be proved and proved beyond a reasonable doubt; is that correct?
A. Yes.
Q. Was he a good basketball player, or do you remember?
THE COURT: You don't have to answer that.
A. I'll refrain from answering that.
Q. You know of no reason why you couldn't give either party a just, fair and impartial trial?
A. No.
* * *
* * *
Q. Ms. Black [sic] you say you've known Lieutenant Kemp since he was a child?
A. Yes, sir.
Q. That has nothing to do with anything, does it, in this case?
A. Not that I know of.
Q. Either the evidence proves Bob Barks to be guilty and proved beyond a reasonable doubt so that you are firmly convinced of it; otherwise he's not guilty; is that correct?
A. That's right.
Q. And that wouldn't be a blow against Lieutenant Kemp or anybody else; would it?
A. No.
Q. It would just not be proved, and that's that?
A. That's right.
* * *
* * *
Q. Mr. Forester, where are you from originally?
A. Eastern part of Jefferson County.
Q. How long have you known Officer Pigg?
A. My daughter went all through school with him.
Q. That's the only way you know him?
A. And I know some of his family.
Q. Oh, you know some of his family?
A. Yes, sir.
Q. Have you ever talked to him about any of his cases?
A. No, sir.
Q. Of course, you didn't even know this case existed before you got here today?
A. Right.
* * *
* * *
Q. Mr. Crump, where are you from originally?
A. Festus, Jefferson County.
Q. And you have known Officer Pigg for about how long?
A. Since he was a freshman in high school.
Q. Do you ever talk to him about any of his cases that he has?
A. Not that I can recall.
Q. When do you think the last time was that you spoke with him?
A. Just about a month and a half, about two months ago.
Q. I'm sure, but I'll ask; he didn't mention anything about that particular commuter lot, did he?
A. No, sir. Chris never talks about his job with us.
Q. As far as you're concerned, you know of no reason why you couldn't be fair, just and impartial; is that right?
A. That's right.
Afterwards, the trial court overruled appellant's motion to strike Veniremen Stotler and Blake for cause on the grounds that it believed that they could set aside their prior associations and could listen to the evidence fairly and impartially. The trial court also overruled appellant's motion to strike Venireman Forrester because Mr. Forrester had never responded in any way as to his personal association with Officer Pigg and that his answers did not indicate prejudice. The trial court excused Venireman Crump because of the closeness of his relationship with Officer Pigg and because he was ambiguous as to whether he could set it aside.
It is well settled that a defendant in a criminal trial is entitled to a full panel of qualified jurors before he is required to make peremptory challenges. Nevertheless, the trial court is vested with broad discretion in determining the qualifications of a venireman and its decision on challenges for cause will be disturbed only upon a showing of a clear abuse of discretion and real probability of injury to the complaining party. State v. Smith, 649 S.W.2d 417, 422 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).
A relationship with police officers is not sufficient, standing alone, to disqualify a juror. State v. Walton, 703 S.W.2d 540, 541 (Mo.App.1985). In this case, one venireman, Crump, had a close, on going relationship with the state's key witness, Officer Pigg. Despite Crump's stated willingness to be fair and impartial, the trial court properly struck him from the jury. However, the relationships of the three challenged veniremen with the two police witnesses were not as close. Further, with one momentary exception, all three veniremen clearly stated that they would be fair and impartial and would weigh the officer's testimony in the same way as other witnesses.
Venireman Stotler, when first asked if he could fairly and impartially evaluate Officer Pigg's testimony replied "I think so." After that response, however, he was clear and unequivocal, replying to the prosecutor that he had "[n]o doubt." He similarly informed the defense counsel of that three times. Responses by Veniremen Blake and Forrester demonstrated the same lack of equivocation.
Appellant refers us to State v. Jones, 692 S.W.2d 343 (Mo.App.1985) which reversed a trial court that had overruled the challenge to a police officer's wife who thought she knew one of the testifying officers. However, the trial court was reversed, not because it allowed a veniremen who was familiar with a witness to remain, but because that venireman gave confusing and equivocal answers regarding her ability to treat a police officer's testimony on the same basis as that of any other witness. Id. at 346-347. In this case, there is no such confusion or equivocation.
Appellant...
To continue reading
Request your trial
-
State v. Huckin
...of Revenue, 791 S.W.2d 851, 853 (Mo.App.1990); Edwards v. Director of Revenue, 769 S.W.2d 483, 484 (Mo.App.1989); State v. Barks, 711 S.W.2d 892, 898 (Mo.App.1986). "Such suspicion may arise from an observation of conduct not constituting a traffic violation but merely an unusual operation ......
-
State v. Hunter, WD
...search and seizure of a small handgun was found valid within the parameters of Terry. Id. at 670. Finally, in State v. Barks, 711 S.W.2d 892, 898 (Mo.App.1986), the court found reasonable grounds for stopping Barks where Barks had made a quick inspection of his vehicle and an equally speedy......
-
Barks v. Armontrout, 88-1960
...L.Ed.2d 285 (1963); Piercy v. Black, 801 F.2d 1075, 1077 n. 2 (8th Cir.1986). Barks's conviction was affirmed on appeal, State v. Barks, 711 S.W.2d 892 (Mo.Ct.App.1986), and his motions for rehearing and transfer to the Supreme Court of Missouri were denied. In 1986 Barks filed a motion to ......
-
State v. Sandusky, 53920
...be, that the discovery was inadvertent, and that it was apparent to the officer that such evidence was incriminating. State v. Barks, 711 S.W.2d 892, 898 (Mo.App.1986). Here, Mossman was rightfully at the location of defendant's truck for it was proper police procedure to secure the defenda......