State v. Bishop
| Decision Date | 21 April 1997 |
| Docket Number | No. 21088,21088 |
| Citation | 942 S.W.2d 945 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gary L. BISHOP, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Robert G. Duncan, Kansas City, for defendant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Sara L. Trower, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Following a jury trial, Gary L. Bishop (Defendant) was convicted of possession of more than five grams of marijuana with intent to deliver, § 195.211 1, and sentenced as a prior drug offender to twenty-two years imprisonment. Defendant appeals the judgment of conviction.
In Point I, Defendant charges that the trial court erred by refusing to sustain certain of Defendant's requests to strike venirepersons for cause. In Point II, Defendant challenges the sufficiency of the evidence to support his conviction.
We find that the evidence was sufficient to support Defendant's conviction. However, the trial court erred when it rejected Defendant's challenge for cause to venireperson Emma Gilmer who later served as a juror. We reverse and remand.
On July 20, 1995, while patrolling on I-55, Jeff Heath (Heath) of the Missouri Highway Patrol stopped a north-bound automobile because the driver was speeding. The stop occurred in Pemiscot County. The operator of the automobile, Nabil Abu Amsha (Abu Amsha), was alone. When Heath inquired about ownership of the automobile, Abu Amsha produced a rental agreement that listed Defendant as the renter of the vehicle. During this traffic stop, Heath asked if he could search the vehicle. The driver consented. During the ensuing search, Heath found ten bundles of marijuana in a box located in the trunk of the car. When asked about the marijuana, Abu Amsha told Heath that he knew it was there but did not know how much. Abu Amsha's explanation was that the marijuana belonged to Defendant, that Defendant was following in another rental car which was a white Pontiac with Michigan plates, and that he (Abu Amsha) was actually transporting the marijuana for Defendant. Heath then "contacted the local policemen" and requested that they stop and arrest Defendant.
While waiting for Defendant's apprehension, Heath had the rental car towed from the highway by a local towing service. Meanwhile, Defendant was stopped and arrested in New Madrid County. After his arrest, Defendant was brought to the towing company.
Trooper Graves (Graves), who transported Defendant from the arrest site to Pemiscot County, testified that he advised Defendant of his rights per the Miranda warning. Continuing, Graves testified that about ten minutes after the Miranda warning was given, Defendant "demanded to know why he was being arrested." Graves responded that it was related to marijuana, whereon "[Defendant] admitted his involvement with the transportation of marijuana." When asked specifically what Defendant had said, Graves After Graves brought Defendant to the towing company site, he was questioned further. Heath testified that in response to his questions, Defendant told him that he and Abu Amsha had gone to Houston, Texas, where he [Defendant] bought 56 pounds of marijuana for $27,000. Defendant also told Heath that he was paying Abu Amsha $100 per day "to help him [Defendant] transport the marijuana to Michigan to his son."
answered: "That he [Defendant] had rented another vehicle, that another driver was actually driving to Michigan for him, but that he [Defendant] was not in possession of any [marijuana]." Graves testified that he asked Defendant if he would cooperate in delivering the marijuana to its intended destination, but Defendant declined, saying: "[H]e could not, that the marijuana was going to his son, and that when he saw someone was behind him, that he had telephoned his son and told him that there was something up."
Defendant told essentially the same story to another highway patrol employee, Mark McClendon (McClendon), i.e., that the marijuana belonged to Defendant and his son, that he [Defendant] had bought the marijuana in Houston two days earlier for $27,000, and that Defendant had rented the car in which the marijuana was found. Additionally, Defendant told McClendon that he had bought a container for the marijuana, that "he and another male had placed the marijuana in the storage container and that he (Defendant) had placed the container inside the [rental car]."
Defendant offered no evidence. Throughout the trial, Defendant took the position that there was no evidence connecting him with the marijuana and that he was not in possession of it.
At trial, seven jury panel members answered in one fashion or another when, during voir dire, defense counsel asked their views about an accused who does not testify during trial. The trial court denied defense counsel's request that these seven venirepersons be stricken for cause. Ultimately, one of the seven served on the jury.
Defendant was convicted of possession of more than five grams of marijuana with intent to deliver. This appeal followed.
Defendant states in his first point that the trial court erred in overruling his challenge for cause to seven venirepersons. Six of the seven challenged venirepersons did not serve on the jury, however, because they were removed by Defendant's peremptory strikes or were dismissed because a full panel existed without them.
The State argues that because of § 494.480.4, we need only review Defendant's challenges of the one venireperson who actually served on the jury. 2 We agree.
Under the present version of § 494.480.4, failure to strike an unqualified juror is not reversible error of law unless the unqualified juror actually served on the final jury. State v. Wise, 879 S.W.2d 494, 512, n. 9 (Mo.banc 1994); State v. McElroy, 894 S.W.2d 180, 184 (Mo.App.1995). Defendant is not entitled to appellate relief as to the six venirepersons who did not serve.
Emma Gilmer was the venireperson who served after Defendant's challenge for cause as to her was overruled. On appeal, Defendant contends that his challenge to Gilmer should have been sustained because of Gilmer's voir dire answer that she would have a problem with drawing no inference of guilt if Defendant did not testify.
In reviewing Defendant's claim, we are mindful that a trial court has broad discretion in ruling on challenges for cause. State v. Harris, 870 S.W.2d 798, 805 (Mo.banc 1994). Appellate courts will not disturb a Here, the following occurred during defense counsel's questioning of prospective jurors:
trial court's ruling on a challenge for cause unless it constitutes a clear abuse of discretion and results in a real probability of injury to the complaining party. Id. at 805-806. The qualifications of a venireperson are not determined conclusively by a single response but are made on the basis of the entire examination. State v. Brown, 902 S.W.2d 278, 285 (Mo.banc 1995).
....
Thereon, defense counsel moved to other inquiries and Gilmer was never again questioned about her concerns about an accused who does not testify.
Later, during the conference to consider challenges for cause, counsel specifically challenged Gilmer for cause. He reminded the judge that Gilmer was among those who answered affirmatively that "they had a problem with a defendant who did not testify ... that there would be an inference of guilt, or think would have a problem having no inference of guilt...." After hearing defense counsel's motion and his reasons for striking venireperson Gilmer, the court heard argument from the prosecutor in which he mistakenly stated: "I think they [the seven challenged prospective jurors] also said they would follow the Court's instructions...."
The court rejected Defendant's challenge for cause, saying:
To qualify to serve as a juror, a person must be able to answer the questions presented with an open mind free from bias and prejudice. State v. Ervin, 835 S.W.2d 905, 915 (Mo.banc 1992). A trial court commits reversible error if it denies a legitimate request by an accused to excuse for cause a partial or prejudiced venireperson and such unqualified juror actually serves on the final jury. Wise, 879 S.W.2d at 512 n. 9; McElroy, 894 S.W.2d at 184. "The critical question in a bias challenge is whether the...
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